Court Clerk asks Workmate to Make his Criminal Charges Go Missing—Avoids Conviction


Section 122 of the Criminal Code sets out the offence of breach of trust by a public official:

122. Every official who, in connection with the duties of his office commits fraud or breach of trust is guilty of an indictable offence… Whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

The elements which must be proved beyond a reasonable doubt to establish the offence of breach of trust by a public officer are as follows:

1.      The accused is an official;

2.      The accused was acting in connection with the duties of his or her office;

3.      The accused breached the standard of responsibility and conduct demanded of    him or her by the nature of the office;

4.      The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and

5.      The accused acted with the intention to use his or her public office for the purpose other than the public good, for example, for dishonest, partial, corrupt, or oppressive purpose.

Regina v. Boulanger, 2006 SCC 32 (CanLII), [2006] 2 S.C.R. 49, McLachlin C.J. at para. 56.

Was the Accused Acting in Connection with the Duties of his Office?

In R. v. Jeremie Naidoo, the Court found that the accused, a court clerk, was not acting in connection with the duties of his office when he asked a court services representative at the courthouse where he worked not to enter the information charging him for drinking and driving related offences into the provincial data base tracking system.  That system, known as the Integrated Court Offences Network. (ICON), generates court dockets and tracks the informations (the charging document) through the judicial process.

The accused had no authority over the court services representative and no ability to direct her to withhold the input of information as part of her public duties.

R. v. Jeremie Naidoo, 2017 ONSC 1332, at para 36.

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